Regular readers know TYC has been sued over Executive Director Dimitria Pope's August 2 directive moving OC spray or "pepper spray" up the use of force continuum, letting employees use it more often. But according to longstanding TYC policies created in the wake of the historic Morales v. Turman settlment in 1984, OC spray or "pepper spray" may be used only in these limited circumstances; to:
- quell a riot or major campus disruption;
- resolve a hostage situation;
- remove youth from behind a barricade;
- secure an object that is being used as a weapon and that is capable of causing serious bodily injury;
- protect oneself from imminent harm when manual restraint would be impracticable;
- protect youth, staff or others from imminent harm when manual restraint would be impracticable;
- prevent escape and fleeing apprehension when manual restraint would be impracticable.
Bottom line: Her directive contradicts the GAP policy, which was never formally changed. Pope's directive did not go through the regular agency rulemaking process and does not have the force of TYC's General Administrative Polices. Here are the circumstances under which TYC GAP policies allow using physical restraints:
- Protection of youth from imminent self-harm;
- Protection of self from imminent harm;
- Protection of other youth or third parties from imminent harm;
- Protection of property from imminent damage;
- Prevention of escape or fleeing apprehension;
- Movement of a youth referred to the security unit, isolation room or alternative classroom;
- Movement of a resistant youth within the security unit to minimize the disruption when the youth’s behavior is substantially disruptive and the youth refuses to follow a reasonable request to stop the behavior;
- Movement of a resistant youth from a dangerous or disruptive situation;
- To conduct a search of a resistant youth reasonably believed to be in possession of a weapon, an item that can be adapted for use as a weapon, a controlled substance, or other item(s) that breech the security of the facility;
- To conduct a search of a resistant youth entering the security unit;
- Administration of medical treatment to a resistant youth when, under the circumstances, failure to administer the treatment could have serious health implications as determined by a health care professional; or
- Collection of DNA samples from a resistant youth, as required by law.
TYC employees cannot simultaneously follow the August 2 memo and the longstanding, still in place GAP policies. They simply contradict one another. That's why the lawsuit by Texas Appleseed and Advocacy Inc. is a slam dunk (see the original petition) - Ms. Pope can't change that rule with a mere administrative memo, she must publish proposed changes in the Texas Register and use the proper legal processes. The lawsuit calls her on overstepping her bounds.
Another aspect of the GAP policies appears to have been defenestrated by TYC administrators:
In TYC high restriction institutions, only the facility administrator, assistant superintendent, ADO, duty supervisor, director of security and security personnel whose regular assignment is outside the security unit are authorized to routinely carry OC spray on their person. (emphasis added)According to this rule, TYC employees in the security units cannot routinely carry OC spray. But isn't that happening now? How else can OC spray be used prior to physical restraint? Perhaps some current TYC employees can let us know if OC spray use right now is restricted to those employees.
If true, it creates real danger for everyone if front-line staff have to wait for someone outside the unit to break up violence, since under the Aug. 2 memo, youth must be sprayed before they're physically restrained. OTOH, if staff in the units carry OC spray, then it violates the GAP policy.
That's a Catch-22 not resolved in the current rules. I'd love to know more about who's now carrying OC spray at the units on the ground.